Prostitution and Coercion
by Russell Hasan | Posted August 22, 2012
I was recently thinking about why prostitution is illegal. As a libertarian I think that it should be legal, as an extension of people’s absolute right to own their own bodies. But many Americans disagree. If there is a rational, persuasive argument against the legalization of prostitutes (or “sex workers,” as they should be called) it is that a need for money would coerce poor women into becoming sex workers and selling their bodies. Poor women who need money to buy food and pay bills would feel economic pressure to become sex workers, this argument goes, so we need to protect them from coercion by denying them the opportunity to sell their bodies.
Some version of the coercion argument underscores a great deal of anti-libertarian sentiment: poor people will be coerced into selling their organs and body parts, which justifies denying them the right to do so. Poor people are coerced into accepting dangerous, low-paying jobs such as coal mining, or are coerced into working long hours for wages that are lower than what they want. They are coerced into buying cheap high-fat fast food, or are coerced into buying cheap meat, packed at rat-infested plants, and so on. The coercion argument is a thorn in the side of laissez-faire politics, because socialists argue that poor people aren’t really free in a capitalist system where they face economic coercion.
An example of the grave seriousness of the coercion myth is legal scholar Robert Lee Hale’s famous law review article “Coercion and Distribution in a Supposedly Non-Coercive State” (1923). Hale brainwashed generations of law students with his argument that capitalist employers exert coercion upon workers, and socialism would not produce more coercion or less freedom than capitalism. The coercion argument goes far beyond the issue of prostitution; it is crucial for the integrity of libertarian theory that we have a definitive refutation to offer the public. This essay presents two strategies for refuting the coercion argument. I will focus on sex work to develop my ideas, but my arguments extend by analogy to every application of the coercion myth.
Assume that there is a poor woman (or man) who cannot pay utility bills and grocery bills and healthcare bills, and does not want to sell her body, but if she becomes a sex worker will earn enough money to pay the bills. Is this coercion? There are two approaches to arguing that it is not. The first approach is to argue, as a matter of deductive logic, that economic pressure can never amount to coercion, and therefore this scenario does not satisfy the definition of “coercion.” The second approach is to argue that economic pressure can be coercion but that capitalism is better than socialism at preventing the situation in which a poor woman has to do work she hates in order to have enough money. This involves showing why libertarian economic policy will create an abundance of economic opportunity for American working-class women.
In the remainder of this essay I will offer my thoughts on how to use each approach, focusing on the analytical approach first and the empirical approach second. I will argue that economic pressure is not and can never be coercion, because economic pressure does not fit the definition of “coercion.”
What is coercion? My 1998 Oxford Dictionary of Current English identifies it as the noun form of the verb “coerce,” which it defines as “persuade or restrain by force.” Dictionary.com defines “coercion” as “the act of coercing; use of force or intimidation to obtain compliance.” A serious question is whether coercion requires, by definition, physical force or the threat of it. I don’t feel it’s necessary to answer that question. I think a good common-sense definition of coercion is “threats of physical force or psychological intimidation that pressure someone into doing something he doesn’t want to do.”
The coercion argument is a thorn in the side of laissez-faire politics, because socialists argue that poor people aren’t really free in a capitalist system where they face economic coercion.
To make my point, permit me to present what academic philosophers call a “thought experiment.” Imagine an English sailor in the late 1700s who is marooned on a desert island after his ship was blasted apart by cannon fire from a pirate attack. This person washes ashore, explores the island, and finds that he is the only human there. There are some animals and plants and trees, and some land that he thinks could be farmed. This sailor faces a choice. Either he hunts for animals or farms vegetables and perhaps gets enough food to support his life, or he starves and dies. He could choose to seek food, which would require doing a lot of sweaty labor, or he could choose to be lazy and sit around and wait and eventually die. Work or death is the choice that he faces.
Few people would say he was coerced into working the job of hunter or farmer. Why? Because the thing that forces him to work is the nature of reality and the circumstances of the desert island. Coercion is typically regarded as an action, as something that one person does to another person to force the latter to conform to the former’s wishes. Where there is only one person there can be no coercion. Reality can be such that you must do something or face an unpleasant punishment, such as hard work, but reality has no mind capable of intentions and therefore has no intent to pressure you to obey some sort of scheme or plan.
It seems counterintuitive to say that reality coerces you, or that the aspect of reality called a desert island coerced you. It is the nature of reality, of humanity in the state of nature, that you work or die. If the sailor resents being forced to work by the human need for food, in a situation where it is obviously reality itself that poses this requirement, then he is rebelling against reality and the nature of human life. The demands of reality are not coercion; they are merely human existence.
This sheds light on the phenomenon that I call “worker’s rage,” a rage that most people feel sometimes and some people feel most of the time — a fear-fueled hatred of the fact that material success requires hard work and entails the risk of failure. I think that many socialists are motivated at a deep psychological level by the feeling that a strong socialist government could somehow create a magical utopia where there is no risk of failure or any need to do work in order to enjoy material comforts. Money and capitalism have come to symbolize the need to do work in order to survive. But as the desert island thought experiment suggests, the “work or die” condition of human existence is the result of humanity in the state of nature. It cannot be the result of capitalism if it exists someplace where there is no economic system. Thus “work or die” is perfectly natural; it is the condition of humans in the state of nature. The actual cause of worker’s rage is reality and not capitalism.
But now let us change the scenario slightly. Suppose that two sailors are shipwrecked on an otherwise desert island. One sailor, let’s call him John, finds a plot of land and sows some fast-growing fruit seeds and produces an orchard (or, for simplicity's sake, let's say a crop) of edible fruit. This sailor also builds a fence around his land, topped with sharp spikes. This fence cannot be scaled without serious risk of death. The second sailor, James, just sits on the beach, doing nothing but watching the waves.
Now James faces the same situation that the sailor in the first thought experiment faced: either he works or he dies of starvation. The new wrinkle is that if John were to give some of his fruit to James, then James would have a third option, to eat John’s fruit, not work, and not starve to death. Let us assume that James asks John to give him some fruit, and John says “no” and refuses to open the gate to his fence to let James in. Has John coerced James?
Here, for reasons similar to those of the first hypothetical, it's difficult to say that John has done anything to James that constitutes “coercion.” In the first place, there isn’t anything that John wants James to do. Therefore there is no intent or plan of John for James to conform to. We can hardly say that John coerced James into doing something when there is nothing that John wanted James to do.
The demands of reality are not coercion; they are merely human existence.
In the second place, if James dies from starvation, it will not have been John who killed him. Everything bad that could happen to James (such as starvation), will have been caused by the island, by the circumstances of not having an abundance of free food waiting to be taken, and by James’ own decision not to work. There is no threat from John directed at James, and any harm that befalls James will not have been caused by John. James’ death by starvation will have been caused by his own decision, combined with the nature of reality and of human beings, and the laws of physics and biology. Of course, John can prevent James’ death by giving him free fruit, but if he doesn't, he has still not taken any direct action toward him, so it can’t truly be said that John caused anything that happened to James.
“Ah, but John built that fence, and in so doing he murdered James!” the hardened socialist will say. If you don’t believe that anyone would seriously claim that the protection of private property constitutes coercion against the poor, let me inform you that the Robert Hale essay used precisely that argument.
My reply is that, in the first place, coercion requires the use of force or threats, at the very least to reduce freedom of choice. James’ freedom of choice has not been reduced. He is free to hunt, farm, sit on the beach, or do anything else he wants to do. John has done nothing to interfere with James’ freedom. Coercion is what would happen if John aimed a gun at James’ head and said, “Sing and dance or I will shoot you in the head.” That is what the government does when it gives orders to be enforced by the police and the army. John's staying behind his fence, farming and minding his own business, while James does whatever he wants on the other side of the fence looks nothing like coercion. John is not doing anything at all to James, and therefore is not “coercing” him.
The only thing that John prevents James from doing is invading his land and stealing his fruit — actions that are not properly within James’ scope of freedom. It strains credulity to think that protecting property that you have the right to own is coercion against people who try to steal it from you. If James were to steal John’s fruit, then James would be feeding off John as a parasite, and John would become James’ slave. James would be using force to steal from John. John’s attempt to prevent him from doing so, by building a fence, is not the aggressive initiation of force; it is merely self-defense. Self-defense protects the defender’s own freedom of action; it in no way pressures or controls the attacker. As can be seen from this example, James’ freedom of action and his ability to survive are in no way impeded. The only thing the fence does is prevent James from stealing from John. Even if John had fruit to spare, which he could give to James without missing it, the fact remains that John has done nothing to control or pressure James. If James cuts a hole in the fence and steals fruit from John, then one might say that James used violent force to coerce John into growing fruit for James to eat, and that James is trying to force John to stand between James and reality so that James can escape from the fact of having to work or starve. But it is reality and the desert island that punish James for his lazy choices.
John faced a risky situation. If he had chosen to reap his crop too late in the summer, a tropical storm might have wiped it out and condemned him to death. James wants to avoid the risks of having to make such choices. He wants to steal the bounty of John’s good choices, acting on the ground that John does not need all the fruit, but he himself does. This is robbery. For John to build a wall to prevent James from robbing him does not force James to make any of the choices available to him. The fence merely prevents James from exploiting John’s choices. Thus, John’s fence cannot reasonably be interpreted as a form of coercion.
Coercion is what would happen if John aimed a gun at James’ head and said, “Sing and dance or I will shoot you in the head.”
Now consider a third thought experiment. Assume that John and James are both stranded on the island, and that John has grown crops and built a fence, while James lies on the beach and enjoys the cool breeze in his hair. James asks John to give him some fruit, and John says "no." But now, with this third and final fact pattern, let us assume that John tells James that he would be willing to give him some of his fruit if in exchange for it James would be willing to do something for him. Here at last we have some elements that suggest the possibility of coercion: John has some purpose or intent that he wants James to fulfill, and James can avoid death by starvation, at least for a few days, if John gives him that fruit. The socialist would say that John has the power to coerce James with the threat of not giving him the fruit, and therefore John can pressure James into doing what James does not want to do. This is the heart of the coercion argument.
But let us look more closely. John does not want James to obey him blindly. John is proposing a trade whereby James does something for John (some sort of sex work, let us assume), and in exchange John gives something of value to James. This would be a free trade of value for value. John does not really want James to “obey.” He wants James to make a rational economic decision in which he gives John something of value to John, in exchange for something of value to James. When a baker gives twenty pizzas to a mechanic and receives a bicycle repair in return, both sides receive something that they wanted or needed more than the things that they traded away, so both sides end up happy. In a free trade both sides are always better off, at least in the sense that they always get what they want or what they choose, because if you don’t think you will be better off from making a trade you simply walk away from it.
But the socialist says that James cannot simply walk away. He says that James has no other choice than to make this deal, because John is the only farmer on the island and so owns all the fruit, and James might die if he refused John’s terms. But if we look at the scenario carefully, we see that nothing has fundamentally changed from the first and second scenarios. What will kill James is the desert island and starvation, not John; there is no aggressive physical force used by John against James. James is free to go off to another part of the island and build his own farm, and John is not restricting any of James’ abilities, with the single exception of his ability to steal. John owes nothing of his fruit to James. He would therefore be fully justified in not giving any of it to him.
Having established that James has no right to John’s fruit, we can see that it is good for James that John offers to trade some fruit in exchange for some work. Unless John chooses to give some of his fruit to James, there is no reason why James should be entitled to any of John’s fruit, so it is perfectly right and ethical for James to have to come up with some value he can give to John in order to make John freely and voluntarily give some of his fruit to James. It simply isn’t true that John is threatening James or trying to intimidate James, because James’ danger of starvation is caused by the island and not by John, and John is not doing anything to prevent James from going off and doing anything he wants, including starting his own farm.
Capitalist freedom is the only kind that lets you make your own decisions rather than having someone else run your life.
Whether or not there is “unequal bargaining power,” as socialist lawyers like to say, is irrelevant. The fact remains that John has every right to make a proposal that James is free to accept or reject. John is free to accept or reject James’ request, and James is free to accept John’s offer or reject it and face the consequences of the dangers of life on planet Earth.
James’ freedom to choose is real and substantial. The socialists say in a capitalist system a poor person’s freedom illusory. Actually, however, capitalist freedom is the only kind that lets you make your own decisions rather than having someone else run your life. This freedom benefits everyone, rich and poor alike. When the socialists say that James’ alternative to accepting John’s offer is death, what they mean is that they don’t want James to have to do the work and take the risk of starting his own farm. They want to use their guns to tear down John’s fence and let James steal from John so that James won’t have to face risk and make choices, as is proper for a human being trying to cope with the harsh problems of life on earth.
My inquiry thus far has been about whether John is coercing James, not whether John should give James charity voluntarily and out of compassion. Obviously he should; in most cases it is a sin to let other people die, especially if you can help them without putting yourself in danger and they have not committed any morally repugnant crimes. And in a real market economy there is always competition, so no businessman can ever have the kind of monopoly on trade that John does. But I stand by the arguments presented above, which show that John’s offer of money for sex is not coercion. Leftists equate the mugger’s “your money or your life” with the employer’s “work for me on my terms or I won’t pay you, in which case you might starve.” The difference is that the former is a threat of murder, whereas the latter is merely the expression of “work or die,” a reiteration of the natural condition of human life. To say that in practical terms the cases are identical is to ignore every word I wrote in this essay. And where there is no threat there can be no “coercion.”
I will now shift gears and present the second approach to refuting the coercion myth, which is the empirical factual approach. This approach allows that economic pressure might be coercion, but libertarianism would actually produce less economic pressure than statism and would therefore be preferable.
The first step is to frame the question properly, in this way: assuming that economic pressure is coercion, which is the economic system that produces the least economic coercion and the most economic freedom? Is it the capitalist libertarian system, which would legalize prostitution, or is it the socialist, protectionist, statist system, which criminalizes prostitution and uses either central planning or a welfare state? Also, assuming that neither capitalism nor socialism has the ability to erase all poverty (poverty being, after all, a relative term), the question is not which system will eliminate coercion; the question is which system will minimize coercion, because that is the achievable goal.
The logic of this argument must begin with a key observation. Even if prostitution is illegal, poverty will still put pressure on poor women to become sex workers. Criminalization makes prostitution more dangerous and therefore a less attractive choice, but it does not completely prevent poverty from coercing women into becoming sex workers. The widespread existence of sex workers in America proves just how ineffective the ban is. Therefore, whether or not prostitution is illegal doesn’t factor heavily into this analysis; the crucially important question is whether capitalism or socialism is more efficient at creating jobs for poor women.
So long as poverty exists and sex work is a way to make money, there will be economic pressure for women to become sex workers, so one might think that legalization of prostitution would necessarily increase coercion. But libertarianism is not the reason why sex work is repulsive to some women — or why it frequently pays well. That has its roots in human nature and the nature of sexuality. Assuming that the availability of other jobs is the best way to decrease economic pressure, it is perfectly reasonable to examine libertarianism and statism to try to determine which one would be better at providing more choices for women. We can say that a system in which most poor women are not forced to become sex workers is one that is not generally coercive.
The question is not whether it is capitalism or socialism which will eliminate coercion; the question is which system will minimize coercion, because that is the achievable goal.
The explanation for why, under laissez-faire capitalism, there will be more opportunities for the poor than under socialism is that in a capitalist system the entrepreneurs and business owners depend on the skill, talent, intelligence, and hard work of their employees in order to compete. The manager can’t do everything, so if the employees do a bad job, the business fails. Thus, management must always be searching for people who will do a good job, and seeking them wherever they may be found. An employee who is smart and works very hard is valuable. Employers will hunt for and abundantly reward productive employees. If a poor woman chooses to work hard and be a good employee, under capitalism she is likely to find a non-sex-work employer who will hire her. The public education system traps the poor in poverty by giving bad educations to children who can’t afford private schools; but privatization of education, using a voucher system, can solve this problem, and we can assume this as a feature of the libertarian system we are considering. We can also assume that wealthy people would support banks willing to give student loans to well-qualified poor people in order to develop the workforce necessary to compete with rivals.
More wealth in an economy and a higher average standard of living create more opportunities and career choices for everyone, including poor women. Capitalism is simply more efficient at producing wealth than statism, because it is better at providing the incentives that motivate people to be productive. Because free-market capitalism will create more career choices for poor women than statism, they will actually feel less economic pressure in a libertarian society than they would under socialism. Banning prostitution, on the other hand, simply eliminates a way to make money. A ban does nothing to solve the problem of poverty or to reduce the pressure to take unpleasant jobs.
One variation of the coercion argument is that a woman might choose to become a sex worker, but she would not want to if she had a choice (or, to be more precise, if she had money), and therefore the government should make her choice for her. This argument claims that protectionism actually increases freedom by giving people the situations that they would have chosen if they had been free to choose. But no one's choices can be predicted; the human mind is too complex for that. The only way to know what choice someone would make is to give her the freedom to choose, then see what choice she ends up making.
Outlawing prostitution does not magically solve the problem of poverty or help poor women pay their bills.
If a woman (or, again, a man) is horrified by the idea of becoming a sex worker, in a libertarian society she would be free to seek another job and persuade some employer that she would be a good worker and should be hired. F.A. Hayek's famous argument in The Road To Serfdom is that when people face a difficult choice (such as whether to become a sex worker or else have money trouble), they often want the state to eliminate this choice; but if the state destroys their freedom to choose, it has not eliminated the problem of a difficult choice. It has merely made that choice for the people instead of letting each person choose for herself. The poor woman who does not want to become a sex worker but who faces money problems must sometimes make a difficult choice, but outlawing prostitution does not magically solve the problem of poverty or help poor women pay their bills. It merely deprives women of the possibility of becoming sex workers if they wish.
There would probably be a sharp increase in sex work if prostitution were legalized. But there is no reason to assume that such an increase would be caused by coercion, not by the freedom accorded to women who would view sex work as comparatively easy money. There are some human beings who view sex as a physical act devoid of emotional or spiritual significance and who would view sex work and washing dishes as comparable. The idea that no woman could possibly want to become a sex worker is rooted in a very conservative, old-fashioned religious ideology. The state has no right to take the religious views of some people and force them upon others, particularly in light of the First Amendment's separation of church and state.
Looking beyond prostitution to broader issues of coercion, it is also worth remembering Hayek’s classic argument that when government makes people’s choices for them, there is but one authority that everyone must depend on, whereas in free-market competition there are hundreds of thousands of employers and millions of sales and deals happening constantly. The government has the power to coerce you by using its guns to force you to obey, but no capitalist can own every business or control every job. A worker under capitalism always has options and choices. If a woman faces poverty and hates the prospect of becoming a sex worker she is free to seek another job, and if one employer refuses to hire her then she can apply for positions with fifty others. The number of employers it is feasible for any one person to seek employment from, and the costs and sacrifices that any person must make in order to find a job, are real factors, real, empirical questions that vary for each individual. Some people may need to move to find a job, or to make other adjustments in their lives, just as they often do when seeking a spouse, getting an education, and so forth. Generally, however, in competitive capitalism there will be many more choices than in a socialist system.
To conclude: economic pressure is not coercion, but even if it were, libertarianism would produce less coercion than statism. Opposing arguments are common in American culture, especially among leftist or Marxist intellectuals and people influenced by them. The coercion argument is the foundation of many socialist illusions. It is the justification for laws that attempt to protect people from the tough choices that they would feel pressured to make in a free market. The truth is, however, that when the government tries to protect us by eliminating our freedom, that action is coercion. Libertarian capitalism, in which people can make whatever choice they want, is freedom, and freedom is a good thing. I hope that this essay’s framework — a double-barreled shotgun approach to refuting the coercion myth, with one barrel comprised of analytical deduction and another barrel coming from empirical fact — is a step in the right direction on the path toward replacing the state’s coercion with the people’s freedom.
Russell Hasan lives in Connecticut. He is a graduate of Vassar College and the University of Connecticut School of Law. He is a huge baseball fan and is devoted to the New York Yankees. He blogs at russhasan.blogspot.com. Follow him on Twitter: @RussHasan.
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